The National People’s Congress(NPC) has passed a resolution to make amendments to the Hong Kong electoral arrangement by increasing on a large scale the proportion of seats that the regime is able to manipulate. The parliamentary politics in Hong Kong that used to be deficient in its original setup will become irrelevant. With this condition coming on the scene, a further discussion on the interactions among different political blocs under the novel system is not of any significance. But there is one point worth noting in the resolution passed by the NPC this time: a demonstration of how the NPC flip-flops on an issue.

Quite a number of jurisprudents have pointed out that the legal basis for the Basic Law is pretty flimsy. In a federal system where separation of powers between a federal government and state governments is specified in a constitution, like the one adopted by the US, any controversial issue is arbitrated by a supreme court. In China, the Hong Kong Special Administrative Region(HKSAR) came into being according only to Article 31 of the Constitution of the People’s Republic of China(PRC): “The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of specific conditions.” To put it another way, in theory the NPC has the absolute authority to rewrite the status of Hong Kong at any time.

The concern about the legal basis for the Basic Law was only shown in academic works in the past. NPC’s resolution to amend the Hong Kong electoral system has however unfolded the issue clearly before our eyes.

Originally, the Hong Kong electoral arrangement is unequivocally stated in the Basic Law: Article 45 of the Basic Law specifies that the specific method for selecting the Chief Executive is prescribed in Annex I; Article 68 specifies that the specific method for forming the Legislative Council and its procedures for voting on bills and motions are prescribed in Annex II. In Annex I and II of the Basic Law, there are terms and conditions concerning the procedure for making amendments to the electoral arrangement, including an endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive.

Even so, before the notion of amending the Hong Kong electoral arrangement tabled for deliberation, there was no endorsement of a two-thirds majority of all the members of the Legislative Council. In fact, since the pro-democracy camp quit the LegCo en bloc, the current total number of lawmakers in the LegCo is not enough for any bill put to vote regarding amendments to the electoral arrangement. If a motion about an amendment to the electoral arrangement had to be resolved in the LegCo, a by-election would be needed, according to the procedure stipulated, in order to fill in the vacancies so that the total number of lawmakers necessary for deliberating on the motion concerned is enough, before considering political stands and whether the amendment should be made.

Evidently, the NPC has defied altogether the requirements in Annex I and II of the Basic Law. Surely, as the NPC drew up the entire Basic Law including Annex I and II, it can bypass the stipulation and directly rewrite it if it deems Annex I and II outdated. Yet, there is a procedure for making amendments to the Basic Law. According to Article 159 of the Basic Law, an endorsement of a two-thirds of all the members of the Legislative Council of the HKSAR and the consent of the Chief Executive of the HKSAR are needed. So, this route is blocked for the time being as a by-election should be held beforehand like the aforementioned case pursuant to the stipulated procedure.

The current official response to the these issues is that amending Annex I and II is not tantamount to amending the main body of the Basic Law, and the Standing Committee of the NPC has approved a bill concerning amendments to Annex I and II before. But more contradictions are generated with this argument.

First and foremost, notwithstanding an amendment bill concerning Annex I and II having been passed by the NPC Standing Committee in 2010, the amendment bill was drawn up according to the requirement specified in Annex I and II, i.e. an endorsement of a two-thirds of all the members of the Legislative Council of the HKSAR. It was indeed an extension of the original text, which it did not clash with, so is totally different from rewriting the text now in violation of the requirement of amendment stipulated in Annex I and II.

More importantly, the NPC Standing Committee used to take Annex I and II as part of the main body of the Basic Law. Looking back on an account given by the NPC Standing Committee of Annex I and II in 2004, i.e. the interpretation by the organ on the Basic Law that turned the “trilogy of political reform” into the “quintet of political reform”, one will find that it was stated without ambiguity Article 158 of the Basic Law was cited as a legal basis . Checking out the wordings of Article 158, one will find that there is no difference between the main body and non-main body of the Basic Law. In other words, in the eyes of the members of the NPC Standing Committee in 2004, Annex I and II is the same as other part of the Basic Law. If the NPC says any amendment to Annex I and II needs no consultation with Hong Kong people for it is not part of the main body of the Basic Law, it amounts to nullifying the account given back then with a resolution made today.

Up to this point, we have come to back to the concern found only in academic works by jurisprudents in the past, which is political reality all Hong Kongers understand now: at the end of the day, the NPC has the final say, with no principle to follow.

Theoretically, being the highest authority, the NPC is empowered to defy any account of anything given by itself, as evidenced by the fact that the Constitution of the PRC has been amended quite a number of times. That said, vacillating over a national resolution is not costless, especially not following rules previously agreed. If the people have no faith in their rulers, there is no standing for the state. When everything boils down to might making right, the cost of domestic ruling will keep soaring, and the chance of searching out genuine allies in the world outside is slim. Under such governance, can stability be guaranteed to a country of more than a billion of people? Who really causes the instability in China?

(Leung Kai-chi, current affairs commentator)

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